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Abstract

The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if sex work were legalized? When deploying the hypothetical, advocates elide the reality that the commercial sex industry is legal in the United States for a large swathe of workers in the industry: strippers. Stripping, as this Article will describe, is analogous to prostitution in that every interaction between stripper and customer is a performance of intimacy geared toward sexually and emotionally satisfying the customer in exchange for money. During these performances, strippers are often isolated with customers, thereby vulnerable to physical and sexual assault. Applying the argument of legalization advocates, strippers should experience better protection than individuals engaging in prostitution because their work is legal and thus subject to government oversight. But does this argument hold true? This Article examines strippers' experiences as a case study for how the legalization argument for prostitution falls short of its promises. Despite the fact that stripping for money is legal, the stripper's body remains a site of deep controversy in American culture and legal jurisprudence. Her dance is seen both as a threat to social order and an act of expression to be protected. Her work, legally recognized labor, is nonetheless ignored when it is not reviled. Unlike workers whose labor is seen as "legitimate" in the eyes of the law, the stripper operates in a murky zone of legal protection laden with qualifications and contradictions. While legalization has led to heavy regulation, it has failed to protect strippers and has arguably made them more vulnerable by lending a false veneer of legitimacy to strip clubs' labor practices. In the past thirty years, legal doctrine has developed in two distinct substantive areas that exacerbate strippers' poor working conditions: 1) strippers' classification as independent contractors and consequential exclusion from protective labor statutes, and 2) First Amendment jurisprudence that permits regulation of strip clubs, but has not produced meaningful protective regulations for strippers. These doctrinal developments are entangled in underlying social narratives about the worth of sexual labor and the place of the strip club in a morally upright community.